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People v. Liebler.

2022 COA 21. No. 19CA1201.  Attempted Aggravated Robbery—Use of Force—Testimony—Contradictory Video Evidence—Credibility of Witnesses—Prosecutorial Misconduct.

February 17, 2022

Surveillance video from a Safeway store showed defendant leaving the main part of the store with a full shopping cart and entering the vestibule between the store and outside without paying for the merchandise in his cart. Loss prevention officers M.H. and R.A. stopped defendant when he attempted to leave the store without paying for the items, and defendant tried to escape. M.H. and R.A. tackled him to prevent him from getting away. When police officers arrived, they did a pat-down search and discovered methamphetamine in defendant’s pocket. Officers also recovered a knife from the scene. Defendant was later found guilty by a jury of attempted aggravated robbery, possession of a controlled substance, theft, two counts of third degree assault, and two counts of felony menacing.

On appeal, defendant contended that the prosecution presented insufficient evidence to sustain his conviction for attempted aggravated robbery because it did not establish that he attempted to take the items “by the use of force.” The prosecution’s theory at trial was that defendant used force by pushing the cart into M.H. and by headbutting him in an attempt to flee.  Although M.H. testified that defendant pushed the cart into him, the surveillance video shows that defendant never made it out the vestibule door with the cart, and he pulled the cart back into the store away from M.H. when M.H. stopped him. Because M.H.’s testimony was the only evidence that defendant used force in his attempt to take the items from the store and the video contradicted this testimony, a reasonable jury could not have found that defendant used force during the commission of this crime. Further, defendant’s headbutting of M.H. and his use of a knife to escape were not sufficient to support a use of force for the attempted aggravated robbery charge because these actions took place after defendant abandoned the property, not during the attempted taking.

Defendant also contended that the district court erred by allowing a police officer to opine on the veracity of another witness when it allowed the officer to explain why he did not pursue other potential avenues of investigation. Officers may testify about their assessments of interviewee credibility when such testimony is offered to provide context for their interrogation tactics and investigative decisions, which was the testimony here. Therefore, the district court did not err by admitting the officer’s testimony.

Defendant further argued that his convictions should be reversed because the prosecutor engaged in misconduct during closing argument by improperly expressing his personal opinion about the witnesses’ credibility. However, in closing the prosecution discussed the evidence in the case, and his comments did not rise to the level of being “flagrant or glaringly or tremendously improper,” so reversal was not warranted.

Defendant’s conviction and sentence for attempted aggravated robbery were vacated and the case was remanded to the district court to correct the mittimus and for resentencing. The judgment was otherwise affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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